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Missing the Mark

04/22/2016

Missing the Mark: A Response to Chris Chambers Goodman’s 'Net (Race) Neutral: An Essay on How GPA + (Reweighted) SAT – Race = Diversity'

By Amina Musa

In her article "Net (Race) Neutral: An Essay on How GPA + (Reweighted) SAT – Race = Diversity", Professor Chris Chambers Goodman proposes a race-neutral alternative to affirmative action in light of the Supreme Court and Fifth Circuit remanded decisions in Fisher v. University of Texas.[1]  Professor Goodman essentially asserts that where affirmative action has been outlawed in multiple states and the Supreme Court has set a high constitutional threshold for survival of affirmative action programs, the use of a proportional SAT score admissions approach would serve as an adequate means to achieve diversity in higher education.[2] This approach, while potentially workable from a legal standpoint, would not serve to accomplish the key purpose of affirmative action, which is to provide equal educational opportunities for minority students — rather, it assumes and accepts the idea that minority students are less equipped for vigorous higher education, and will likely underperform their peers based upon this admission standard. Thus, though the suggestion proposed would increase diversity numerically, it does not seem to be a viable solution for outcomes, nor align with the principals behind affirmative action.

Goodman seems to accept the idea that race conscious affirmative action programs are likely to be struck moving forward,[3] given that the Court in Fisher seemed to heighten the burden upon affirmative action programs to “narrow tailoring with teeth.”[4] While the Court’s holding in Grutter that diversity in higher education is a compelling state interest remains good law, the Court in Fisher, according to Goodman, “further constricted the narrow tailoring components of  strict scrutiny,” which she still contends may not be fatal to the University of Texas at Austin.[5] Goodman also points out that the Fifth Circuit, in finding that Texas’ program was narrowly tailored and imposed in the least restrictive means possible, rejected the argument that class rather than race should be the focus of affirmative action measures.[6]  Goodman feels that while it is helpful to recognize an inter-relationship between race, class, and socioeconomic status, an effective race-neutral alternative will not necessarily be achieved through removing race and leaving class and SES intact.[7]

Thus, Goodman proposes her “(potentially) adequate race-neutral alternative.”[8] She begins by explaining the admissions process, delineating UT’s Top 10% plan, wherein if a student’s high school GPA is within the Top 10% of GPAs at an eligible high school, that student is granted admission.[9] If an individual is not in the top 10%, then the university creates an academic index based upon GPA and SAT score, then considers elements to create a personal index, which at UT includes race.[10] The academic and personal indexes are plotted on a matrix, and a diagonal line is drawn to determine admission and denial.[11]

Professor Goodman’s new proposal consists of utilizing the same concept as the top 10% GPA policy, except using SAT scores. Rather than focusing on national SAT percentiles, the school would admit all students who achieve an SAT score within the top 10% based on those who took the SAT at their high school – so Top 10% SAT score as proportionate to the student’s respective high school.[12]  Goodman reasons that this way, students from lower-achieving high schools are not penalized,[13] and individuals can be elevated on the academic index without the need to use race to increase their personal index.[14] The idea behind this is that it will be effective in increasing minority enrollment, while remaining race-neutral.

While Goodman’s proposal will theoretically produce a larger number of diverse acceptances, it raises multiple issues impeding its successful execution and outcome. One issue is that certain schools, particularly those with high minority student enrollment, may be unaccredited or otherwise fall short of meeting qualifications, making students from such schools ineligible for consideration, and defeating the purpose of the proposal. Additionally, Goodman brings up a point regarding taxpayer concern when high-achieving students are denied admission because their SAT scores are not proportionately high as compared to their classmates.[15] Likewise, schools implementing this proposal may be concerned that in accepting students with lower numeric SAT scores and rejecting students with higher scores (but proportionately not high enough based on school average), school averages and statistics will become skewed, and admissions standards generally will be unclear or lower overall. This would be especially problematic at more elite institutions, where statistics and standards of SAT scores are greatly emphasized. Goodman concedes that her potential solution would mean lowering admissions standards across the board, which would be problematic for most universities, especially in a more competitive admissions climate.[16]

Further, there is the chance that, even at lower-achieving high schools, the students with the top 10% of SAT scores are not of minority status. Goodman presents no statistics showing that this would clearly be the case, or even that the proposal would necessarily increase the amount of diverse acceptances. Finally, standardized tests have recently been attacked as being problematic regarding fairness, as there are issues of bias against those of certain races or socio-economic status.[17] Thus, though these tests can serve as a predictor of grades at the college level,[18] they do not account for much beyond test-taking skills — they fail to demonstrate an individual’s “soft” qualities, such as extracurricular skills and abilities, or even other important traits such as drive and ambition that are needed to succeed in college and beyond. So while Goodman accepts the fact that minority populations often perform lower on standardized tests,[19] she does not address the idea that these tests are perhaps not the best or most fair gauge of college preparedness or admissions generally.

Another major issue with Professor Goodman’s proposal is that it does not do much to place minority students on equal footing or ahead in the realm of higher education. Goodman asserts that because their respective high schools were less rigorous, students coming from these urban schools and entering college are less prepared, and therefore potentially less successful, in advanced college program.[20] This is a similar proposition made by the late Justice Antonin Scalia at Oral Arguments for the Fisher case, which has again been appealed to the Supreme Court, was argued in December 2015, and will be decided this year. Justice Scalia opined “that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well.”[21] Similarly, Goodman simultaneously seeks to increase the number of diverse students, while acknowledging that these students are not likely to succeed. She seems to be suggesting a “loophole” to bypass affirmative action laws and admit a larger number of minority students, then addresses the shortcomings of having a greater number of students from urban high schools in these programs, but fails to remedy these concerns. The approach seems almost careless and counterproductive, in that an advocate for diversity in higher education would not take such a “bandage” approach that lacks oversight of broader implications.

With the Fisher case being reconsidered by the Supreme Court again, perhaps there will be greater clarity regarding the standard of a narrowly tailored admissions program. By proposing a potentially effective race-neutral alternative, Professor Goodman is effectively implying that the Fifth Circuit’s decision was incorrect, and that UT’s program should in fact be struck down on this next appeal. This seems to be a large implication to make based on a brief proposal with little to no statistical or proven outcomes. Just because there is some possible and hypothetical race-neutral alternative in existence, it does not mean that a program is not narrowly tailored. And as shown above, this alternative fails to achieve the desired ends of the opportunity for long-term success for minority students in higher education and beyond, so it should not be given credence as a true alternative to race-conscious means.


Amina Musa*
Edited By Tyler Winn

Footnotes

[1] Chris Chambers Goodman, Net (Race) Neutral: An Essay on How GPA + (Reweighted) SAT – Race = Diversity, 59 St. Louis L.J. 303, 303 (2015).

[2] Id. at 312–13.

[3] Id. at 304.

[4] Id. at 309. “The Court’s mandate that this university receive less deference than was accorded to the law school in Grutter means that the trial court will require additional proof to establish whether there are other options for accomplishing the university’s diversity goal.” Id. at 310 (citing Fisher v. University of Texas, 133 S. Ct. 2411, 2420 (2013)).

[5] Goodman, supra note 1, at 310.

[6] Id. at 311

[7] Id.

[8] Id.

[9] Id. at 312.

[10] Goodman, supra note 1, at 312.

[11] Id.

[12]Id. at 312–13.

[13] Id. at 312. Goodman asserts that “lower scores are to be expected based on the quality of the high school, prior educational preparation, as well as parental education and income levels, school resources, and availability of extracurricular activities, as well as race and ethnicity.” Id.

[14] Id.

[15] Goodman, supra note 1, at 319.

[16] Id. at 315.

[17] Nolie M. Rooks, Why It’s Time to Get Rid of Standardized Tests, Time, Oct. 11, 2012, http://ideas.time.com/2012/10/11/why-its-time-to-get-rid-of-standardized-tests/.

[18] Goodman, supra note 1, at 313.

[19] Id. at 316.

[20] See id. at 316–17.

[21] Transcript of Oral Argument at 67, Fisher v. University of Texas, 135 S. Ct 2888 (2015) (No. 14-981).

* Saint Louis University School of Law, J.D. Candidate, 2017.